ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: SCA(P) 1035/11
DATE: 20120706
B E T W E E N:
HER MAJESTY THE QUEEN
Jeremy Schaffer, for the Respondent
Respondent
- and -
PRITHVIRAJ BALENDRAN
Peter Lindsay, for the Appellant
Appellant
HEARD: May 22, 2012
REASONS FOR JUDGMENT
[On appeal from the judgment of Bruce Duncan J.
dated April 14, 2011]
F. DAWSON J.
[ 1 ] Mr. Balendran appeals against his conviction and the findings of guilt made against him for having “care and control” of a motor vehicle while his ability was impaired by alcohol and while having a blood alcohol level that exceeded 80 milligrams of alcohol in 100 millilitres of blood.
[ 2 ] The conviction and the findings of guilt were made B. Duncan J. of the Ontario Court of Justice on April 14, 2011. However, pursuant to an agreement between counsel and the trial judge the determination whether the appellant was in care or control was argued and decided before the final witness for the Crown was called. That witness was an expert whose evidence would not have been required if the trial judge had ruled that the appellant was not in care or control. The defence had undertaken to call no evidence.
[ 3 ] On February 3, 2011 the trial judge ruled that the appellant was in care or control and the trial proceeded. As the appeal before me has been limited to the care and control issue I have not been provided with a transcript of the proceedings subsequent to February 3, 2011. It is agreed that the appeal turns on whether the trial judge erred in determining the care and control issue.
[ 4 ] The trial judge heard evidence that at approximately 6:00 p.m. on January 18, 2009 a tow truck driver came upon a Cadillac in the ditch just off the ramp from Queen Street to Highway 410 southbound, in Brampton. The vehicle was against a tree and stuck in the snow.
[ 5 ] The evidence revealed that the appellant approached the tow truck driver and offered him $300 to pull the vehicle out of the ditch provided he did not call the police. The tow truck driver smelled alcohol on the appellant’s breath. He refused the offer and called the police. When the police arrived the appellant was arrested in a nearby fast food restaurant to which he had walked.
[ 6 ] The appellant was extremely intoxicated and analysis of two samples of his breath later revealed readings of 200 and 190 milligrams of alcohol in 100 millilitres of blood.
[ 7 ] It is sufficient for the purposes of the appeal to mention that the evidence showed that the appellant had the keys to the Cadillac, that the car was owned by his mother, and that the engine could be started. There was damage to the car’s front bumper. However, there was no evidence that the vehicle was inoperable.
[ 8 ] The tow truck driver also testified that he observed the appellant start the car and spin the tires in an attempt to extricate the vehicle. However, that information was not mentioned in his police statement and the trial judge concluded the tow truck driver may have been confusing this incident with other similar incidents he had been involved in. The trial judge did not accept or rely on this aspect of the tow truck driver’s evidence.
[ 9 ] The trial judge also found that he had a reasonable doubt about whether the appellant was driving the vehicle at the time it entered the ditch. Consequently, the issue of care and control had to be determined on the basis of other relevant considerations.
[ 10 ] The trial judge noted that the appellant possessed the keys and that while the vehicle was immobilized the appellant “was doing his best to change that situation”.
[ 11 ] The trial judge found that the appellant had care or control in the broad sense of superintendence over the vehicle. The critical question as to whether he was in care or control in the legally relevant sense required for a conviction under s. 253 (a) or (b) of the Criminal Code came down to whether the vehicle was operable and whether his superintendence was accompanied by a present or future risk of danger, whether from putting the vehicle in motion or in some other way: R. v. Wren (2000), 2000 5674 (ON CA) , 47 O.R. (3d) 544, 144 C.C.C. (3d) 374 (C.A.).
[ 12 ] The grounds of appeal relate to paragraph 15 of the trial judges succinct reasons. That paragraph reads as follows:
- In this case, there was no evidence that the vehicle was inoperable or unmovable if it had been extricated. It had obviously been mobile when it went into the ditch. There was no evidence that the damage it sustained was extensive. The engine worked. I infer from this together with the defendant’s eagerness to escape police scrutiny that it was in fact operable and he intended to move it if he could get it out. In my view the defendant had superintendence and control over the vehicle and there was a risk that he would move it and thus create a danger. He was in care or control.
[ 13 ] The appellant submits that in view of the trial judge’s finding that the appellant had not driven the car into the ditch, and his rejection of the tow truck driver’s evidence that the appellant started the car and was spinning the tires, his conclusions that the vehicle was operable and that the appellant intended to move it if he could get it out, are based on speculation as opposed to reasonable inference.
[ 14 ] With respect to the trial judge’s determination that the vehicle was operable, the appellant rests his argument on the submission that the reference to avoiding police attention has nothing to do with the operability of the vehicle. As I read the trial judge’s reasons, he based his conclusion of operability on the fact that the engine would run, that the car was operable when it went into the ditch, that it was not badly damaged and that there was no affirmative evidence that it was inoperable.
[ 15 ] The trial judge was stating two conclusions in the same sentence in very succinct reasons. It appears to me that his reference to eagerness to escape police scrutiny was intended primarily to relate to his second conclusion that the appellant intended to move the car if he could get it out. I would add, however, that if the vehicle was obviously inoperable the appellant might not have been so intent on getting the vehicle out. Getting the car out if it was inoperable would not assist much in avoiding police scrutiny. Consequently, I do not agree with the submission that the appellant’s eagerness to both get the vehicle out and avoid police scrutiny were irrelevant to the operability issue, particularly when combined with the other factors the trial judge referred to.
[ 16 ] With respect to the trial judge’s second conclusion that the appellant intended to move the vehicle if he could get it out, the appellant submits that being eager to escape police scrutiny does not logically support the conclusion that the appellant intended to move the vehicle himself unless the trial judge ruled out other reasonable possibilities. For example, counsel submitted the appellant may have arranged to have the vehicle towed to his home or to some other safe location and not driven it at all.
[ 17 ] There is a difference between making a choice amongst inferences or reasonable possibilities, and determining whether a particular inference is available based on the proven facts. The first is a factual determination subject to the standard of review of palpable and overriding error. The second raises a question of law which is reviewed on a standard of correctness.
[ 18 ] If the trial judge engaged in speculation, that would constitute an error of law which would require that the appeal be allowed unless the Crown invokes the proviso in s. 686(1)(b)(iii) of the Criminal Code and demonstrates that the error caused no substantial wrong or miscarriage of justice: R. v. Morrissey (1995), 1995 3498 (ON CA) , 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 210.
[ 19 ] The distinction between inference and speculation can be a fine one. As stated in Watt’s Manual of Criminal Evidence , 2011 ed. (Toronto: Carswell, 2011), in the “Commentary” at p. 104:
An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion that may , not must be drawn in the circumstances. It does not change the allocation of the burden of proof, nor alter the standard of proof to be met by any party. [Emphasis in original.]
The boundary that separates permissible inference from impermissible speculation in connection with circumstantial evidence is often a very difficult one to determine.
[ 20 ] In my view the conclusions reached in paragraph 15 of the trial judgment were not speculative. Predicate facts established by the evidence included that the accused was intoxicated and wanted the vehicle pulled out of the ditch without the police being notified. Based on common human experience those predicate facts were capable of leading to the conclusion that the appellant intended to move the vehicle if he could get it out. That would create a risk of danger. The accused chose not to testify and there is no evidence in the record to show that was not the appellant’s intention.
[ 21 ] While other possibilities existed, and while the trial judge was not required to draw any inference, it cannot be said that the conclusions he reached were unreasonable or unsupported by the evidence. The fact that the trial judge did not express why he discounted other possibilities does not turn reaching a conclusion that is reasonably available on the predicate facts into speculation.
[ 22 ] I would also point out that there was no evidence to support the other possibilities suggested by counsel during the argument of the appeal. The evidence is that the intoxicated appellant said “pull it out”, not “pull it out and tow it to a safe location and call me a cab”. While there are not many circumstances to support the inference drawn by the trial judge, there are some. On the basis of the record it seems to me that it is the alternatives advanced in argument that are speculative while there are some circumstances that support the inference the trial judge drew that the appellant intended to move the vehicle.
[ 23 ] If the trial judge had been sitting with a jury he would have been required to direct them that a finding of guilt could only be made where there was no other rational explanation for the circumstantial evidence but that the accused committed the crime: R. v. Charemski , 1998 819 (SCC) , [1998] 1 S.C.R. 679, 123 C.C.C. (3d) 225, at para. 13 . In the circumstances of this case that instruction would apply to the determination of the care and control issue. As was also noted at para. 13 of Charemski : “Making that finding is essentially a factual matter arising from an evaluation of the evidence.”
[ 24 ] This is not a case where it can be said there is no evidence to support the inference the trial judge drew. Consequently, deciding whether to draw it was a factual matter and does not raise a question of law. There is no palpable and overriding error that would entitle an appellate court to intervene. As there is some evidence reasonably capable of supporting the inference on which the verdict turned, it cannot be said that the verdict is unreasonable or unsupported by the evidence.
[ 25 ] The appeal is dismissed.
F. DAWSON J.
Released: July 6, 2012
COURT FILE NO.: SCA(P) 1035/11
DATE: 20120706
ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – PRITHVIRAJ BALENDRAN Appellant REASONS FOR JUDGMENT F. DAWSON J.
Released: July 6, 2012